Malik Imtiaz : HINDRAF 5: ISA Detentions Side-Step Justice System

http://malikimtiaz.blogspot.com/2007/12/hindraf-5-isa-detentions-side-step.html

What need was there to detain the HINDRAF five under the Internal Security Act?

The ISA is a draconian law. It has no place in the modern and mature society that Malaysia is. It has been condemned internationally and locally. The manner in which the ISA allows for subjective detention without trial is violative of the fundamental liberties of persons detained in a manner that cannot be justified in any circumstance.

The Government’s position is that the five are threats to national security and public order and that they are a menace to the public for having lied about the Government in accusing it of ethnic cleansing, for having organized illegal assemblies and for having had links with terrorist groups (‘5 Hindraf leaders a threat to national security’, NST, 14.12.2007).

These accusations reveal the possibility of the five having engaged in criminal activity. Three of the five have already been charged with sedition (though I wish to stress that I do not view the offence of sedition as being constitutional). Chapter VIA of the Penal Code was recently added to allow for the prosecution of persons involved in terrorist activity. Appropriate arguments could be mounted to oppose bail to ensure that pending the trial of the five, they would be prevented from fleeing the jurisdiction and, arguably, from repeating the offensive activity.

We cannot lose sight of the fact that no matter how heinous the activity complained of may appear, accusations remain mere accusations until and unless they are made out in a court of law. Every person is presumed innocent until proven guilty in a court of law.

The detentions are therefore clearly preemptive, allowing for a side-stepping of a criminal justice system that is aimed at ensuring that no person is denied his constitutionally guaranteed right to liberty save where it is denied through an exercise of judicial scrutiny replete with inbuilt safeguards aimed at ensuring that an innocent person is not mistakenly imprisoned.

The Government would have us believe that rather than preemptive, the detentions are preventive. The crucial question is on whose account. The Government can hardly be considered to be objective bearing in mind the cause HINDRAF espouses. We have heard much of the Government having taken grave exception to the positions HINDRAF has taken. In the very public fanfare surrounding the official reaction to HINDRAF, we have been made to understand that the Prime Minister is angry at the suggestion of ethnic cleansing. He is outraged at the lies that he feels HINDRAF has allegedly told of his Government ('Governmnent doing its best for Indians', NST, 02.12.2007; 'PM: They want to destroy the country', Malaysiakini, 13.12.2007). He is also, by virtue of being the Internal Security Minister, the authority responsible for the issuance of detention orders.

Anger is not sound basis for objective decision-making. It is further not a proper legal basis for the issuance of a detention order.

In the same vein, political expediency cannot be allowed to become a factor, more so where the detentions are a ‘face saving’ measure. And as much as the Government may deny this to be the case, the truth is that the Government is acting in its own cause. This is as compelling a reason as any to not invoke the subjective processes of the ISA.

The Prime Minister has publicly declared that the authorities have evidence of the alleged terrorist links HINDRAF is said to have ('Close watch on Hindraf', The Star, 08.12.2007). Minister Nazri has also publicly declared the existence of such links ('Link is with Tamil Tigers and India's Rss, says Nazri', The Star, 08.12.2007). If this is the case, then there is more reason for the five or any number of other persons involved to be appropriately charged and prosecuted.

The detention of the HINDRAF 5 may also have the retrogressive effect of, by reason of its ‘chilling’ effect, stifling genuine civil society efforts aimed at promoting discourse on the path this nation must take to ensure sustainable and inclusive development. This would include efforts by various interest groups aimed at addressing the underlying grievances that have caused citizens to peaceably assemble these past five weeks or so. It would be regrettable if these groups, in particular that part of the Indian community that, no matter the rhetoric and the politics of the situation, have felt represented in a way that they have not before were to take from the detentions a signal that the Government does not consider their situation and grievances as being of sufficient importance.

MIS

Public criticism on ISA arrest

ISA – A symbol of torture that silences peaceful protests - AI

Use of ISA condemned! - WAMI & CIJ

URGENT APPEAL: 5 Hindraf leaders Arrested under ISA - GMI

ISA Arrests of HINDRAF Leaders Indefensible - SUARAM

PENAHANAN PIMPINAN HINDRAF DI BAWAH ISA ADALAH ZALIM DAN KEJAM - SUARAM

5 Hindraf leaders Arrested under ISA: Release or Charge Them! - GMI

No To ISA Crackdown - Y4C & EMPOWER

Hindraf ISA arrests: BN govt has lost its moral authority - ALIRAN

Time BN and ISA to go ! PSM Statement - PSM

PAS kutuk penggunaan ISA terhadap pimpinan Hindraf - PAS

ISA a disgrace to Islam Hadhari and mockery to democracy -SIS

Star : Five Hindraf leaders detained under ISA

PETALING JAYA: Five Hindu Rights Action Force (Hindraf) leaders have been arrested and detained under the Internal Security Act (ISA).

The five are P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar. They were picked up at various locations in Selangor, Kuala Lumpur and Seremban.

It is learnt they were detained under Section 8 (1) of the ISA after Internal Security Minister Datuk Seri Abdulah Ahmad Badawi signed their detention order.

Their detention is for two years.

Uthayakumar and two others namely Ganabatirau and P. Waythamoorthy were charged under the Sedition Act on Nov 23 in Klang 23 for allegedly making speeches to incite hatred at a gathering in Batang Berjuntai, Selangor, on Nov 16. Waythamoorthy is currently overseas.

Under Section 73 (1) of the ISA, the police can detain any individual for up to 60 days without a warrant, trial and without access to legal counsel if he was suspected to have “acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof."

After 60 days, the Minister of Home Affairs can extend the period of detention without trial for up to two years, without submitting any evidence for review by the courts, by issuing a detention order, which is renewable indefinitely.

The five detained

1) P. Uthayakumar

The 46-year-old lawyer was called to the Malaysian Bar on Jan 23, 1993. He is the legal advisor to the Police Watch and Human Rights Committee and advisor to the Malaysian People's Reform Party (Parti Reformasi Insan Malaysia or PRIM). He had been a secretary of the MIC Club in London and has appeared in a number of cases related to police abuse, deaths in police custody, police shootings and police inaction. He had also taken part in the reformasi campaigns in support of sacked Deputy Prime Minister Datuk Seri Anwar Ibrahim.

2) M. Manoharan

The 46-year-old Manoharan has been a lawyer for 15 years and was a legal assistant to Karpal Singh for 10 years before branching out on his own. He has been in the DAP and had contested in a parliamentary seat in Federal Territory and was also the Selangor DAP chairman for a short term.

3) V. Ganabatirau

Advisor to the DAP's Sri Muda branch in Shah Alam.

4) R. Kenghadharan

He is a lawyer and was one of the counsels for Uthayakumar when the latter was charged in court for publishing a seditious letter in a website.

5) T. Vasanthakumar

The former bank officer resigned about a month ago after his employers asked about his involvement with Hindraf. He is in his 30s and single. He is now a full-time Hindraf activist and its organising secretary.

http://thestar.com.my/news/story.asp?file=/2007/12/13/nation/20071213144228&sec=nation

8 Arrested in Lawyers-organised March

SUARA RAKYAT MALAYSIA
433A, Jalan 5/46, Gasing Indah,
46000 Petaling Jaya, Selangor, Malaysia.
Telephone: +6 03 7784 3525 Fax: +6 03 7784 3526
Email: suaram@suaram.net Web: http://www.suaram.net/

Urgent appeal: 9 December 2007

Continued Assault on Freedom of Assembly:

8 Arrested in Lawyers-organised Human Rights Day March

The government¡¯s all-out assault on freedom of assembly continued this morning, during a march organised by a group of lawyers, when eight individuals were arrested. The march, held to mark the International Human Rights Day on 10 December 2007, was intended to start from the Sogo department store to Central Market, was stopped at a halfway point by the police.

At that point, the organisers tried to negotiate with the police to allow them to finish the march.

When negotiations failed, the police arrested seven individuals at Jalan Tun Perak, despite the organisers¡¯ and participants¡¯ willingness to cooperate. Those arrested have been taken to the Kuala Lumpur police headquarters.

In addition to the seven, one more individual was arrested in front of Bar Council building, making the total arrests so far eight.

The eight arrested are:

Sivarasa Rasiah (Arrested at Jalan Tun Perak)
N. Surendran (Arrested at Jalan Tun Perak)
Amer Hamzah (Arrested at Jalan Tun Perak)
Eric Paulsen (Arrested at Jalan Tun Perak)
Anthony Andu (Arrested at Jalan Tun Perak)
Noorazah Othman (Arrested at Jalan Tun Perak)
Latheefa Koya (Arrested at Jalan Tun Perak)
One individual arrested in front of Bar Council building

Yesterday, the police gave a warning to the public not to attend the march as no permit has been issued for the gathering. This fresh round of arrests and attack on peaceful assemblies came only in a matter of days after the government had threatened the use of ISA on the Hindu Rights Action Force (HINDRAF), which organised a massive rally two weeks ago.

SUARAM strongly condemns the government and police¡¯s continued assault on freedom of assembly. We demand that all arrested be released immediately and unconditionally.

We strongly urge the government to stop intimidating the public by pressing charges against participants in assemblies and demonstrations, and deplore its repeated threats to use the ISA.

Actions needed Please write protest letters to the government and the police to register your strongest condemnation and outrage on the latest arrests and the continued assault by the government on freedom of assemblies, and demand that all arrested be released immediately and unconditionally.

Your protest letters should be sent to:

Prime Minister of Malaysia
Dato¡¯ Seri Abdullah Ahmad Badawi
Prime Minister's Office Malaysia
Perdana Putra Building,
Federal Government Administrative Centre,
62502 PUTRAJAYA,Selangor, Malaysia.
Tel: + 60 3 8888 6000 Fax: + 60 3 8888 3444

Inspector-General of Police
Tan Sri Musa Hassan
Ibu Pejabat Polis Diraja Malaysia,
50560 Bukit Aman,
Kuala Lumpur, Malaysia.
Tel: 03-22626015Fax: 03-22725613
_________________

SAMPLE LETTER

[Letterhead of your organisation]

Prime Minister of Malaysia
Dato¡¯ Seri Abdullah Ahmad Badawi
Prime Minister's Office Malaysia
Perdana Putra Building,
Federal Government Administrative Centre,
62502 PUTRAJAYA,Selangor, Malaysia.
Tel: + 60 3 8888 6000 Fax: + 60 3 8888 3444

Dear Sir,

Re: Continued Assault on Freedom of Assembly - 8 Arrested in Lawyers¡¯ March

We are writing to express our outrage over your government¡¯s latest round of assault on the freedom of assembly.

On 9 December 2007, eight individuals were arrested by the police for attending a peaceful march intended to celebrate the International Human Rights Day, a day celebrated across the globe, including United Nations.

We question the need to resort to such actions, especially when the organisers of this peaceful march had tried to negotiate and shown willingness to cooperate with the police.

We view this as yet another attempt by your government to intimidate Malaysian citizens from participating in any form of public assembly.

We demand that all those arrested be released immediately and unconditionally. We further demand that your government stop the assault on freedom of assembly.

We condemn the repeated threats to use the ISA and the ridiculous charges pressed against demonstrators recently. We strongly urge you to stop shaming Malaysia, a member of the United Nations Human Rights Council.

We would like to remind you that freedom of assembly is guaranteed in the Universal Declaration of Human Rights as well as the Federal Constitution of Malaysia.

Yours sincerely, [Name]

Rela Bill will only make us better, says DG

Fauwaz Abdul Aziz Dec 7, 07 7:19pm

The concerns raised by human rights groups and other quarters regarding people's volunteer corps Rela provided the impetus for the proposed 'Rela bill', said its director-general Zaidon Asmuni.Whether they be fears about arbitrary searches, arrests and detentions, physical or sexual abuse, or the lack of a selection process to weed out the 'bad hats', the Rela bill is the only logical solution to such issues, he said.

"The proposed Act is so that we have our own legislation which will standardise and gazette what we do and the powers that we have currently. We will not have any powers beyond what we have already," he said when contacted today.

"The way I look at it, we are already doing work equal to that of existing government departments. People have actually expressed surprise that we're not yet a department! If we have our own department, it would improve our work. They need not fear us at all," he added.

Zaidon was responding to a memorandum submitted yesterday to various ministries and political leaders by civil society organisations who fear that the Rela bill would see more human rights violations and abuse of power by the corps' members.The human rights groups who submitted the memorandum - Suaram, Tenaganita, Hakam and the Civil Rights Committee of the Kuala Lumpur and Selangor Chinese Assembly Hall - also called for the disbanding of Rela.

90 percent positive work

Zaidon, however, chided them for calling for the disbanding of a volunteer body that he said has done a lot of good for the country since it was created, under the Home Ministry, by the Essential (Ikatan Relawan Rakyat) Regulations 1972.

"Rela has ensured security and public order at sports games, we have helped traffic police carry out their duties, we have done our part to prevent some crimes, we have helped out during natural disasters such as floods, and we provided food at evacuation centers.

"Which government agency has all these things under their portfolio? Perhaps 90 percent of what we do is positive, while only 10 percent of our members commit mischief. Those who are calling for the total disbandment of Rela have no sense of patriotism at all," he said.

Zaidon assured rights groups that while Rela would prefer having prosecution and investigation powers, these or other expanded powers are not provided for in the proposed Rela legislation.

"The current standard operating procedures will be the standard operating procedure under the Rela Act," he said.

Zaidon, who was formerly the Pahang Immigration Department director, clarified that much of what Rela does currently is to bolster the tremendous human resource demands placed on the police force and the Immigration Department's enforcement division.

Thus, a large number of Rela's 450,000 members have acted as security personnel for the immigration depots at the Kuala Lumpur International Airport as well as at Pasir Gudang in Johor.

"This has allowed the police to concentrate more on preventing crime, for example, while we have helped to bolster Immigration's 6,000 enforcement officers. The department is burdened with having to enforce, investigate and prosecute, among its other functions," said Zaidon.

Under control now

On the many allegations of human rights violations and abuses reported against Rela - especially against migrants and refugees - Zaidon admitted Rela struggled initially to come to terms with the powers it had been given almost three years ago.

Since then, however, Rela has 'matured' and the cases of abuse and violations - while not completely gone - have decreased to a controllable level, he said.

"In the first six months since March 2005, Rela was struggling and grasping, fumbling around the regulations and trying to determine how best to do things with regards to illegal immigrants.
"But after three years, we have matured. I don't deny the few cases where Rela members have committed assault or stole the possessions of people here and there. But such cases are not many and they are under our control," said Zaidon.

He also said the problems of abuse usually arise during the 'unofficial' operations conducted by Rela members which have not been sanctioned by senior Rela officers. These, he said, will decrease once Rela procedures and powers are streamlined by the Rela Act.

Zaidon also said Rela welcomes the set up of a commission or other mechanism to register, channel, investigate and act on complaints raised against any of its personnel or volunteers.
"We welcome the set up of a commission that would address complaints raised against any of the enforcement agencies, including Rela," he added.

http://www5.malaysiakini.com/news/75806

Rela Bill will unleash a 'monster'

Fauwaz Abdul Aziz Dec 6, 07 7:30pm

Proposed legislation to enable people's volunteer corps Rela to be operated under a department, as part of efforts to expand its powers, is being seen as disastrous for human rights - especially those of migrant workers and refugees.

Civil society organisations have teamed up to object to the Rela Bill which is due to be tabled in Parliament next week.

At a press conference in the Parliament lobby today, several leaders pointed out the long list of allegations and reports of abuses and violations levelled against Rela members.

These range from arbitrary searches, arrests and detentions, physical and sexual abuse, to forced entry into private homes and robbery, they said, disagreeing with the government's contention that the bill would help improve management of migrants and refugees.

Another key point made is that Rela's 450,000 volunteers undergo very little training and are not closely monitored or supervised by any governmental body.

"You will be unleashing a monster that you cannot control," PKR vice-president R Sivarasa said.
He was among several Barisan Nasional and opposition leaders who accepted a memorandum today on the Rela Bill, submitted by the Civil Rights Committee of Kuala Lumpur and Selangor Chinese Assembly Hall, Suaram, Tenaganita and Hakam.

The memorandum calls for Rela to be disbanded instead of being given additional powers; improvements to police and immigration officers' training to better handle matters of migrant workers and refugees, as well as domestic security; and for endorsement of the relevant international human rights conventions.

It also urges the Home Ministry, under which the volunteer corps is placed, to submit to Parliament regular reports on the raids, arrests and detentions carried out.

An appeals committee should also be set up so that alleged victims of abuse of power and violations of human rights can channel complaints, which can then be documented.

On the government's rationale of using Rela members to make up for the lack of police and immigration personnel, Suaram executive director Yap Swee Seng said such reasoning is similar to hiring St John's volunteer paramedics to carry out medical operations or other functions in hospitals.

He also cautioned that relations with neighbouring countries will worsen as a result of alleged abuse of various nationals by Malaysian security personnel.

"We hope all parliamentarians will raise the issue in Parliament and (reject) the bill, or it will lead to more human rights violations and further ruin our relationship with our own neighbours," said Yap.

'Disappointing reply'

DAP publicity secretary and Seputeh parliamentarian Teresa Kok said she would raise the matter in Parliament when the Rela bill comes up for debate.

She pointed out that her attempt in August to get the Home Ministry to address complaints raised against Rela had resulted in a disappointing reply which, in effect, dismissed them as mere allegations.

According to Kok, the ministry said no official complaint had been lodged regarding any Rela member or alleged abuse of power, and that no Rela member has been charged for violations committed during such operations.

"This is a brutal, fake, and very untruthful answer," said Kok.

She added that her application to Speaker Ramli Ngah Talib to refer the ministry to the Privileges Committee for 'misleading' the House had fallen on deaf ears.

Because of this, Kok said she will seek a RM10 cut from the proposed budget allocation for Rela to express dissatisfaction with the corps.

"I hope there will be more MPs, especially from BN, who will support this motion so that we can highlight this problem and reject the Rela bill," she said.

Minister in the Parliament's Department Mohd Nazri Abdul Aziz, who chairs the Parliamentary Human Rights Caucus, received the memorandum on behalf of the Home Ministry. He did not comment on its contents.

http://www5.malaysiakini.com/news/75754

Memorandum on Rela New Bill

CRC-KLSCAH and few Malaysian NGOs will submit a memorandum on Rela new bill to various parties at Parliament.

Date : 6 December 2007
Time : 1230pm
Venue : Parliament

Whoever interested to attend please contact Yaphwa at 012-2658448 or Mr. Chan at 03-22723519